Monthly Archive: July 2009

The FMLA’s notice requirements for employers have been the subject of considerable confusion in the past. Under the Department of Labor regulations that went into effect January 2009, the notification requirements are consolidated into a single section (29 C.F.R. §825.300), and conflicting provisions and time periods in the former regulations have been eliminated.

Employers who fall under the FMLA (50 or more employees within a 75 mile radius) must provide the following notifications:

(1) General Notice to Employees. The employer must provide general information about the FMLA through a poster (available from the DOL) placed in a conspicuous place, and by including the information either in the employee handbook or in written material given to the employee at time of hire. A notice that may be used by employees is available from the DOL at: www.dol.gov/esa/whd/fmla/index.htm.

(2) Eligibility Notice. Once an employee requests FMLA leave, or the employer has a basis to believe that the employee’s leave maybe for an FMLA-qualifying reason, the employer must provide an “Eligibility Notice” to the employee within five (5) days, absent extenuating circumstances. This notice must either advise the employee that they are eligible for FMLA leave, or explain why they are not. A form eligibility notice is available for download at the DOL website referenced above.

(3) Rights and Responsibilities Notice. The employer must also provide a “rights and responsibilities notice.” This notice can be combined with the eligibility notice, and is a single document on the DOL form described above. Part A of the form is the eligibility notice, and Part B explains the rights and responsibilities of the employee. This notice should include the following, as applicable:

a. a statement that the leave is counted against the employee’s 12-month entitlement under the FMLA, and an explanation of which method the employee uses to calculate the FMLA year (i.e. calendar, rolling, etc.);

b. any obligation for the employee to provide a certification of serious health condition, exigency (military), etc. and the consequences of failing to provide such certification. A copy of the certification form required by the employer may be included with this notice;

c. the employee’s right to substitute paid leave (consistent with the company’s leave policies), or the employer’s requirement that paid leave be substituted;

d. any requirement that the employee pay a portion of the health insurance premium during leave, and the consequence should the employee fail to do so;

e. any designation of the employee as a “key employee” under the FMLA, and the effect of that status on job restoration;

f. the employee’s right to maintain health insurance benefits during leave and restoration after leave;

g. the employee’s liability for health insurance premiums paid by the employer during leave, in the event that the employee fails to return to work after the leave;

h. any other appropriate information that should be communicated to the employee – for example, a requirement that the employee make periodic reports to the employer regarding intent to return to work.

(4) Designation Notice. The designation notice must be sent within five (5) days of the determination that in fact the leave is covered by the FMLA. This determination can be made in some cases when the initial request for leave if submitted by the employee, and in other cases will not be made until the employer receive a certification of serious health condition. This form must specify the number of hours, days and weeks that will be counted against the employee’s FMLA leave entitlement (if known). If the employer requires a fitness-for-duty certificate for the employee to return to work, that requirement should be stated in this notice. A form designation notice (with boxes to check off) is also available at the DOL website.

Don’t wait until an employee requests FMLA leave – take time now to review your company’s FMLA notice procedures to make sure they are in compliance with the current regulations.

Effective July 24, 2009 the federal minimum wage increases to $7.25 per hour, an increase of four cents above the current Florida minimum wage of $7.21 per hour. Employers are required to pay the higher of the federal minimum wage, or the minimum wage required by state statute.

Accordingly, Florida employers should adjust their payroll practices no later than July 24 to ensure that all employees are paid a minimum of $7.25 per hour. An exception is tipped employees, whose hourly rate continues to be governed by the Florida law permitting a reduced wage of $4.19 per hour, provided that the employee’s wage plus tips equals total compensation of at least $7.25 per hour.

Phyllis J. Towzey is among the select, first group of attorneys to become board-certified in Labor & Employment Law by The Florida Bar. Her firm provides employment law services to business owners, medical groups, non-profits, physicians, professionals and executives.